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Friday, November 20, 2015

On Wednesday, November 18, the appellate division declined applications made by Salauddin Quader Chowdhury and Ali Hasan Mohammed Mujahid to review the court's earlier decision to uphold the sentence of death originally imposed by the International Crimes Tribunal.

There are no more legal avenues available for the two men, and unless they seek presidential clemency - which is highly unlikely - the timing of their execution now depends only upon the government and the jail authorities.

This is the first of a number of articles about the trial and that appeal process that resulted finally in the courts decision yesterday.

This particular article considers the issue of the court's decision on Wednesday to rule that a certificate of graduation from the University of Punjab, filed by the defense, was a 'forgery'

1. How does the university certificate fit into the trial?

Chowdhury's key defense was that he was not in Chittagong during the whole of the 1971 war. He had sought to prove this in two ways.

First through eye witness testimony of those who took him to the airport at the end of March 1971, people who met him in Karachi in the first few weeks of April 1971 including the person in whose house he stayed, and then witnesses who met him in Lahore during from the end of April to August 1971 again including the person in whose house he stayed.

Secondly through proof that he studied at Punjab university, that he took an exam at the university in August 1971 and obtained a degree certificate.

2. What happened to the defense witnesses?

As has been written previously in this blog, the Tribunal restricted the number of witnesses the defense could summon to five, and then to only four. So whilst the accused was able to summon three witnesses that supported his alibi testimony (the fourth witness was Chowdhury himself), he was not able to summon eight specific witnesses who could have provided further testimony in support. (To access the evidence of the three witnesses that did give evidence, read this article) It should be noted that Chowdhury was accused of 20 separate offenses, and the prosecution had called 41 witnesses.

3. And what about documentary evidence that he had been admitted at the university?

In relation to the certificate, during the trial, the defense submitted (along with other affidavits) a letter dated 24 January 2011 from the Department of Political Science of Punjab university, and signed by its chairperson, Dr Umbraid Javeed (download here). It stated:

"This is to certify that Salauddin Quader Chowdhury s/o AKM Fazlul Quader Chowdhury, class roll no 172 remained a student of (BA Hon) (Political Science) who secured 233/500 for the academic session 1970/71. He appeared in BA (Hons) Final Examination in August 1971."

Following the submission, the Tribunal passed an order which stated:

'It is an admitted fact that there is no provision to file additional documents on behalf of the defence during trial. Despite of this fact, for the ends of justice, we are inclined to give permission to the defence to submit additional documents and accordingly the defence is permitted to submit the additional documents as mentioned in the application and those documents be kept with the documents filed earlier by the defence.’

It is not entirely clear what the Tribunal meant by this - other than simply stating that it had received the documents. In its actual judgement the Tribunal dismissed the documentary evidence:

‘The defence in violation of the provision of section 9(5) of the Act submitted some documents before the Tribunal at the fag end of defence argument and intentionally refrained from proving those documents by recalling defence witnesses.’

4. And what happened at the appeal?
Following the appeal arguments, the judgment of the court did not explain its views about the letter from the chairperson of the university. It argued, however, that, "No explanation has been given why the accused could not bring any duplicate certificate from the University. If he could collect the affidavits, a testimonial from a teacher, what prevented him to collect a duplicate certificate from the University is not clear to us.". The full extract is below.

"It is interesting to note that though the accused could file a duplicate copy of his Higher Secondary Examination Certificate, he did file neither the original nor any duplicate copy of the certificate from the Punjab University. He claimed that he had successfully completed his graduation from the Punjub University and then had his higher education from Lincoln’s Inn. He filed a testimonial alleged to have been issued by Dr. Umbreen Javid of the department of political science, University of Punjab on 24th January, 2013. No explanation has been given why the accused could not bring any duplicate certificate from the University. If he could collect the affidavits, a testimonial from a teacher, what prevented him to collect a duplicate certificate from the University is not clear to us. The testimonial shows that he appeared BA honours final examination in August 1971 and that he scored 233/500 for the academic session 1970-71.

It is to be noted that if there are oral and documentary evidence on the same subject, the documentary evidence will prevail over the oral evidence. Accused Salauddin Qader Chowdhury’s basis of alibi plea is that he had studied at Punjab University, where he had completed his Bachelors of Arts (Honours).

Considering the above facts, we are of the view that the plea of accused’s undergoing educational study in West Pakistan during the relevant times in 1971 being the sheet anchor of the case must be proved beyond doubt. The accused has utterly failed to prove the same."

5. And did anything change at the review stage?

As part of its review application (to exactly the same court which had ruled in the appeal), the defense lawyers had filed an application requesting that 8 alibi witnesses, who had not been able to testify at the tribunal (see above), should be summoned to the court. This application was denied. In court the chief justice said, "You were able to get all these affidavits from all parts of the worlds and yet you were not able to get a copy of the university certificate." In its written order, given later, the court stated:

This Division rejected the same by order dated 2nd November, 2015, on the reasoning that if he had at all underwent education in Punjab University, he could have produced authentic documents from the University concerned.

Following this decision the case was adjourned to 17 November.

6. And then what happened?

On 16 November, Chowdhury's family then filed an application to admit as additional evidence a number of documents relating to the certificate.

C. An attested letter from the registrar video of the registrar in which she says:

This is to certify that Mr Salauddin Quader Chowdhury s/o AKM Fazlul Quader Chowdhury was a regular student of the Department of Political Science of the Punjab, Lahore for the academic session 1970/71. His university examination roll number was 170 and his department of Political science enrollment was 172.

The university is willing to provide any other documents necessary to support this matter other than the verified document attacked by my office. For further information on this matter please feel free to contact us office of the undersigned.

I am Doctor Liaquat Ali. I am presently the registrar of th ePunjab University, Lahore and have issued a certificate which reads that:

To Whom It May Concern
This is to certify that Mr Saldduin Quader Chowdhury was a regular student of the Department of Political Science, University of Punjab, Lahore for the academic session 1970-71. His university examination rol number was 170 and his department of Political science enrollment number was 172. The university is willing to provide any other documents necessary to support this matter other than the verified document attacked by my office. For further information on this matter please feel free to contact us office of the undersigned.
I have also atteted and verified the copy of the degree issued to Mr Saluddin Quader Chowdhury, if anyone required to see the documentation regarding the admission, graduation, examination and issuance of the degree the record is available in my office. Thank you for the questions I ma happy to answer the questions.

In its application in court the defense lawyer pointed out that the university was willing to provide any assistance to the court to verify the documents, and also said the prosecutor can take any steps necessary also to verify the documents

7. What did the appellate division say in response to these document?

The appellate division rejected the application. In its written judgment the court found that the certificate was 'spurious' and 'forged'. The court gave the following reasons why it believed that it was forged:

A. The duplicate certificate was issued on 22 May 2012, but the defense did not lodge the certificate at the time of trial, at the time of appeal or at the beginning of the review application.

'We fail to understand why the petitioner did not produce this certificate before the tribunal or in the appellate Court in course of hearing of the appeal, although he had filed good number of documents which he procured in 2013. If he could produce those documents, there was no reason for him not to produce these duplicate certificates.'

B. The certificate states that the academic session was '1971' and not 1968-71

'In these certificates the academic session has been mentioned as ‘1971’. Learned Attorney General pointed out that if the petitioner had at all studied at Punjab University in honors course, his examination allegedly held in August 1971 his academic session ought to have been 1968 - 1971, inasmuch as, the honors course during that period was for three years.'

C. Chowdhury did not produce any paper showing that he had transferred his credit to Punjab university.

'Learned Counsel submitted, the petitioner studied at Dhaka University earlier and then he transferred his credit to Punjab University in 1971. In support of this claim, the petitioner did not produce any paper. Therefore, facts reveal that in May, the petitioner admitted to Punjab University in honors and obtained graduation in August in political science from the Punjab University which is totally an absurd story to believe.'

D. The certificate was not certified by a Bangladesh government representative.

'Further, the authenticity of the certificate has not been certified by an authorised officer of the High Commission Office of Bangladesh stationed in Pakistan.'

In court the chief justice also said that Pakistan is a hostile country and has criticized the war crimes tribunal, and so any documents coming from Pakistan can not be trusted.

8. How should one assess the court's decision?

The following points can be made about the decision by the court

A. If the document is forged, who forged it? The court's decision assume that there must be a conspiracy involved in the forgery including the Chancellor of the university, the registrar of the university, the head of the political sciences department, and the Deputy Director (Attestation) of the Higher Education Commission, Lahore. However, the court has no evidence to support any such conspiracy.

B. The court emphasized in its claim that the certificate was forged that the certificate had been made available in 2012, but was not produced before the court until 2015. This is a perfectly legitimate query. However, if the document was forged, it makes no sense why the forgers would put the date of May 2012.

C. The defense lawyers did in fact provide in its written application an explanation as to why this certificate was not filed earlier. They say that they had filed a letter form the head of the political science department with the Tribunal, and the Tribunal did not at any point, including in its judgment, suggest that a copy of the certificate was required.

D. The issue of whether or not the defense lawyers should have submitted the document earlier is a different one from whether the document is genuine or not - but the court conflates those two issues. The defense may have been negligent in failing to file this certificate earlier, but the certificate can still be genuine. However the court suggests that the document must be false because it was not submitted earlier.

E. As to why (i) the certificate has '1971' written on it and not '1968-71' and (ii) as to how it was possible for Chowdhury to attend the university in April and take the exam in August are questions for the university authority to answer, and not one you would expect the court to decide upon itself without hearing what the university authorities had to say on the matter. The Attorney General and the Appellate Division are not experts on such issues and one would imagine, particularly with the life of a man hanging in the balance, the court need to obtain an explanation from the university authorities before coming to these conclusions.

F. As to the lack of attestation by the Bangladesh High Commission in Bangladesh, there are two issues. First, it is clear that no Bangladesh High Commission would have attested such a document. Secondly, the International Crimes Tribunal Act 1973 makes clear that technical rules of evidence should be ignored - and the prosecution have taken great advantage of this in the past. So why not the defense?

9. So what does it all mean?

The key issue here, is that the appellate division put a great degree of emphasis on the absence of the university certificate in its appellate division judgment and also in its initial hearing of the review application, as to why the Chowdhury's alibi cannot believed. As a result, the defense lawyers then filed with the court a duplicate copy of the certificate.

Of course the appellate division is perfectly within its rights to view this certificate with suspicion, but one would expect - particularly given that a persons life is on the line, and that the trial court and the appellate division court itself has declined to hear a series of alibi witnesses - that before the court made any conclusive judgments about the certificate's authenticity it should make a proper examination of the certificate by calling, if necessary witnesses, from the university.

About Me

This is a personal blog, and any views are solely mine. I am a Bangladesh based journalist who has since August 2010 worked as Editor, Special Reports for the Bangladesh national newspaper, New Age (see my other blog on the International Crimes Tribunal in Bangladesh: http://bangladeshwarcrimes.blogspot.com) Prior to working at New Age, between March and September 2010, I worked as a senior editor and reporter at the news website, bdnews24.com and before that I spent seven months at the Bangladesh newspaper, the Daily Star, setting up a small investigations unit. Between 2000 and 2009, I was the Executive Director of the Centre for Corporate Accountability, a UK based not-for-profit organisation concerned with workplace safety. Before that, I worked as a Television journalist and producer for about seven years working mainly for the television production company, Twenty Twenty Television in London. In 1995, I was involved in making the Royal Television Society award winning Channel Four documentary, the 'War Crimes File', a film about war crimes allegedly committed by three men during the 1971 War of Indpendence. I have lived in Dhaka since 2003.